On 15 November 2023, the Supreme Court handed down its judgment in R (on the application of AAA and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent) [2023] UKSC 42. In a unanimous decision delivered by Lord Reed and Lord Lloyd-Jones in a joint judgment, the Supreme Court agreed with the previous Court of Appeal decision that the Rwanda policy is unlawful due to the risk of refoulement. The Supreme Court did not accept the cross appeal argument that there were restrictions on the treatment of asylum seekers under retained EU law.

On 20 November 2024, the Supreme Court handed down its judgment in Secretary of State for the Department for Environment, Food and Rural Affairs and others v Public and Commercial Services Union (the Union). In a unanimous decision, in which Lord Sales and Lady Rose delivered the leading judgment, the Supreme Court upheld the appeal brought by the Union, and held that the Union were entitled to rely on third party rights under section 1 of the Contracts (Rights of Third Parties) Act 1999 (C(RTP)A 1999) to enforce a term in the relevant members’ contracts of employment providing for ‘check-off arrangements’, which was unilaterally removed by its members’ employers. The Supreme court confirmed the correct approach to applying C(RTP)A 1999, s 1(2) and held that, in the absence of an express term in the contract for enforcement by the relevant third party, as was the case here, where the relevant third party is identified as such in the contract and the term they seek to enforce purports to confer a benefit on them (satisfying C(RTP)A 1999, s (1)(b) and 1(3)), a strong presumption of enforceability arises as there is no express term stating the contrary. This presumption is only rebutted under C(RTP)A 1999, s 1(2), where it is shown that, on the usual objective approach to interpretation of contracts, the parties had a positive common intention that the obligation should not be enforceable by the third party. There was no indication of this in the individual contracts of the Union members in this case. Darshan Patel, barrister at Old Square Chambers (acting for the appellant), Nicholas Chronias, partner at DAC Beachcroft LLP, and James Wynne, barrister at Littleton Chambers, comment on the judgment.

The Supreme Court has unanimously held South Africa’s appeal regarding the salvage of a cargo of silver from the wreck of the SS TILAWA (the Vessel) which was sunk in the Indian Ocean in 1942. The silver was and still is owned by the Republic of South Africa (RSA) Government. Most of the silver was to be used for the production of coinage for the Union of South Africa. Argentum Exploration Ltd (Argentum) claimed to have salved the silver in 2017. RSA applied to strike out Agentum's claim for salvage, on the basis that RSA is immune from the jurisdiction of the UK pursuant to the State Immunity Act 1978 (SIA 1978). It claimed that the Silver was not in use nor intended for use for commercial purposes at the time when the cause of action arose therefore, making South Africa immune to Argentum’s in rem claim against the Silver. Tom Snelling, partner of Signature Litigation LLP provides commentary on the Supreme Court’s decision.

Tax analysis: In The Prudential Assurance Company Ltd v HMRC, the Supreme Court decided that success fees for investment management services performed when the supplier was in the same VAT group as Prudential, but invoiced after the supplier had left, were subject to VAT. It found that, in the circumstances of the case, the Value Added Tax Regulations 1995, SI 1995/2518, reg 90(1) determined whether the services were supplied when the parties were in the same VAT group.

On 28 November 2023, the Supreme Court handed down its decision in R (on the application of Afzal) v Secretary of State for the Home Department; R (on the application of Iyieke) v Secretary of State for the Home Department. In a unanimous decision delivered by Lord Sales, the Supreme Court upheld the decisions of the Court of Appeal that the appellants were not entitled to be granted indefinite leave to remain due to Mr Afzal being unable to count a bookended period of overstaying towards the required 10 years qualifying period and the out-of-time application for Mr Iyieke. Zainul Jafferji, head of Chambers at Clarendon Park Chambers and lead counsel for the appellants, comments on the judgment.

The Supreme Court has ruled unanimously to uphold the registration of land as a town and village green (TVG), dismissing T W Logistics (TWL) Ltd’s appeal. The issue in question was whether the registration of the Land as a TVG under section 15 of the Commons Act 2006 (CA 2006) would have the consequence that the continuation of the landowner’s pre-existing commercial activities would be criminalised under (in particular) the Victorian statutes. Setting out the rights of both local inhabitants and the landowner, the Supreme Court held that the TVG registration does not criminalise the landowner’s activities on the Land and dismissed all grounds of appeal. Stephen Morgan, junior counsel at Landmark Chambers, and Timothy Baldwin, barrister at Garden Court Chambers, comment on the judgment.

In the matter of an application for Judicial Review by JR123 (Appellant) (Northern Ireland), the Supreme Court held that the Rehabilitation of Offenders (Northern Ireland) Order 1978 strikes a fair balance between the appellant’s rights under Article 8 of the European Convention on Human Rights (ECHR) and public interests. Unanimously dismissing the appeal, the Court ruled that the Order’s provisions regarding ‘spent’ convictions did not breach the appellant’s right to private and family life. Anurag Deb, PhD researcher at the School of Law, Queens University, Belfast, comments on the case, highlighting the significance of the judgment in maintaining a broad margin of appreciation for legislative decisions in this area.

The Supreme Court has ruled on two joined appeals opposing sanctions under the Russian sanctions regime, dismissing both challenges. The court held that while sanctions constitute interference with Convention rights, the government should be accorded a wide margin of appreciation given the importance of containing the impact of Russia’s invasion. The majority judgment established that courts must make their own proportionality assessment rather than merely review the executive's decision-making process. Alexander Gorst, senior associate, of BCL Solicitors LLP comments on the implications of the judgment, along with commentary from the Lexis+® UK Public Law team.

The UK Supreme Court has unanimously dismissed Process & Industrial Developments Ltd’s (P&ID) appeal against a costs order made in favour of the Federal Republic of Nigeria (Nigeria). The court held that the Commercial Court and Court of Appeal were correct to award costs in sterling rather than in Nigeria’s national currency, the naira. It ruled that costs orders are discretionary and not compensatory in nature like damages awards and that it was appropriate to make the order in the currency in which Nigeria incurred and paid its legal expenses. The court found no error in law in the lower court’s decision and noted that there was no resulting ’windfall' to Nigeria despite currency fluctuations. Duarte G. Henriques of Victoria Associates, Nikki Hussey of Eversheds Sutherland and Elizabeth Kantor of Herbert Smith Freehills Kramer comment on the implications of the judgment.

The Supreme Court unanimously dismissed PGMOL's appeal as it was able, on the basis of the findings of fact made by the First-tier Tax Tribunal (FTT) and the extensive submissions made by both parties, to conclude that the irreducible minimum of mutuality of obligation and control necessary for a contract of employment between the part-time referees and PGMOL was satisfied in relation to the individual match contracts. However, as it did not necessarily follow that the individual match contracts were therefore to be characterised as contracts of employment, the Supreme Court agreed with the Court of Appeal that the case should be remitted to the FTT for its decision.

The Child Poverty Action Group has reported on a Supreme Court decision to uphold a Court of Appeal ruling that the Department for Work and Pensions (DWP) wrongly refused Universal Credit to a domestic abuse survivor who had recently fled her home with her young child. Permission to appeal the Court of Appeal’s earlier ruling was refused. The organisation says that the Supreme Court’s refusal of permission means that EU citizens with pre-settled status and no other qualifying right to reside cannot lawfully be refused universal credit if without it they would be at risk of being unable to live in dignified conditions. Child Poverty Action Group, which represented the mother and daughter, says a response to its Freedom of Information request shows that the DWP will have to revisit over 2,900 other cases to check whether there is a risk of claimants’ dignity being violated.

The Supreme Court has unanimously dismissed the appeal brought by Oatly, holding that its trade mark ‘POST MILK GENERATION’ is invalid in respect of oat-based food and drink products. The Court held that the trade mark uses the term ‘milk’ as a ‘designation’ within the meaning of Point 5 in Part III of Annex VII of Regulation (EU) 1308/2013 (the Regulation) and that it does not clearly describe a characteristic quality of oat-based products and therefore cannot benefit from the Regulation’s proviso exception. Kirsten Gilbert, partner and Head of Brand Exploitation at Marks & Clerk LLP, and Katharine Mason, Principal Associate at Browne Jacobson, provide commentary on the judgment.